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Sunday, January 5, 2014

U.S. Customs Can Examine The Contents of Your Laptop, Mobile Phone, and Any Other Electronic or Digital Devices Whenever Entering the United States

I have written for the past several years about the court decisions around the United States regarding the inspection of the contents of laptops, mobile phones, and other digital devices by officers of the United States Customs and Border Protection (CBP), U.S. Department of Homeland Security (DHS). These inspections or searches of digital devices are still subject to the Fourth Amendment of the United States Constitution against unreasonable searches and seizures by Government officials. The legal question is what is "unreasonable". CBP has long maintained the legal position that there is a "border search exception" to the Fourth Amendment. For the most part, the courts in the United States, including the U.S. Supreme Court, have agreed with CBP.

The December 31, 2013 decision by Senior United States District Court Judge Edward R. Korman, United States District Court for the Eastern District of New York (Brooklyn, NY) issued a Memorandum and Opinion that no reasonable suspicion is required by a CBP or Immigration and Customs Enforcement (ICE) officer to stop, detain, conduct a brief examination, take from the owner/traveler for further examination, and thereafter conduct a forensic, comprehensive examination of the contents of the digital device, including copying all its contents, and sharing those contents with other Federal agencies. The case is entitled Pascal Abidor, National Association of Criminal Defense Lawyers, National Press Photographers Association v. Janet Napolitano, Alan Bersin, John T. Morton, Case No. 1:10-cv-04059-ERK.

The Plaintiffs requested the Court to grant a declaratory junction against CBP and ICE that its policies regarding inspection of electronic devices that travelers seek to carry across an international border into the United States was a violation of the First and Fourth Amendments to the U.S. Constitution.

The particular facts of Mr. Abidor's claim was that on an Amtrak train that crossed into the United States from Canada at Port Champlain, a CBP officer examined his customs declaration and U.S. Passport. Mr. Abidor stated that he briefly lived in Jordan and recently visited Lebanon. The CBP officer demanded to view the contents of Mr. Abidor's laptop, and discovered pictures of rallies of Hamas and Hezbollah, both of which were designated by the U.S. Department of State as terrorist organizations. Mr. Abidor explained that he was a 26 year old student in the Institute of Islamic Studies at McGill University in Montreal, and that his specific area of research for his Ph.D. degree is the modern history of Shiites of Lebanon.

Mr. Abidor was detained and questioned by CBP for 5 hours before being released. His laptop was retained for further inspection, and returned to him 11 days later by CBP by mail.

The National Association of Criminal Defense Lawyers argued that its members have a duty to safeguard privileged and confidential information contained in their electronic devices. The National Press Photographers Association argued that its members communicate with sources who request guarantees of anonymity that they may no longer be able to offer if their electronic devices are subject to search by Government officials.

Judge Korman, in his decision, stated:

[A] careful reading of the CBP and ICE directives indicates that these agencies are sensitive to the privacy and confidentiality issued posed by border searches of electronic devices...[D]eclaratory relief is not appropriate because it is unlikely that a member of the association plaintiffs will have his electronic device searched at the border, and it is far less likely that a comprehensive forensic search would occur without reasonable suspicion.

Judge Korman cited the U.S. Supreme Court case of United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985), which stated, in relevant part:

Routine searches of the persons and effects of entrants [into the United States] are not subject to any requirement of reasonable suspicion, probable cause, or warrant, and first-class mail may be opened without a warrant on less than probably cause.

Judge Korman also cited to cases in the Third and Fourth Circuit Courts of Appeal that concluded that searches of electronic devices constitute routine border searches, hence no reasonable suspicion is required for a CBP or ICE officer to examine them at the border.

Finally, even though Judge Korman stated that the 2 associations did not have standing to request declaratory relief, and that there was no need for the Government to establish reasonable suspicion, regarding Mr. Abidor, he stated: "The agents certainly had reasonable suspicion supporting further inspection of Abidor's electronic devices," and dismissed the case.

The Fourth Amendment to the United States Constitution provides:

[T]he right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures, shall not be violated...

In my opinion, we have not heard the last word about what is and what is not an unreasonable search by CBP officials at the border. The law is always being interpreted and is always changing. Judges and lawyers have a responsibility to protect the people from the world described in George Orwell's famous book, 1984.

For any questions about searches by U.S. Customs and Border Protection or any Department of Homeland Security officers, please post your comments below or contact me directly.

Hello,all.So your best defense is to clean up your laptop. A customs agent can't read what you don't have. You needn't bother with five years' value of email and client data. You needn't bother with your old affection letters and those photos (you know the ones I'm discussing). Erase all that you don't absolutely require. Furthermore use a secure file erasure program to do it. While you're busy, erase your browser's cookies, cache and browsing history. It's no one's business what websites you've visited. What's more turn your machine off - don't just put it to sleep - before you experience customs; that deletes different things. Think about this as the last thing to do before you stow your electronic devices for landing. Some companies now give their employees forensically clean laptops for travel, and have them download any sensitive data over a virtual private system once they've entered the nation. They send any work back the same way, and erase everything again before crossing the fringe to go home. This is a decent thought in the event that you can do it.

Disclaimer

This commentary is informational only, is not legal advice and does not establish an attorney-client relationship. Views expressed are of the individual user and do not represent the views of GrayRobinson, P.A. its owners or its management. You should seek appropriate and properly licensed legal advice before making any decision based on these comments.